Valmiki J. Mehta, J. (Oral):--

1. This first appeal is filed under Section 299 of the Indian Succession Act, 1925 challenging the judgment of the probate court dated 15.12.2012 dismissing the probate petition filed by the appellant. By the petition probate was sought of the Will dated 11.1.2007 of Sh. Himanshu Kumar Roy. Sh. Himanshu Kumar Roy was the real brother of the appellant/petitioner as also the respondent No. 2/objector. Petitioner propounded the Will dated 11.1.2007 and contended that the same stands proved in view of the depositions of both the attesting witnesses one Ms. Juthika Roy and Mr. R.S. Rathore. As per the petitioner, the attesting witnesses as also the petitioner have proved the due execution and attestation of the Will Ex.PW2/1 and also the fact that the deceased was in sound disposing mind, and consequently, probate petition ought to have been allowed and not dismissed. It was also the case of the petitioner/appellant that there were no suspicious circumstances as was contended on behalf of the objector.

2. The objector/respondent No. 2, and who is also the real brother of the deceased Sh. Himanshu Kumar Roy, filed his written statement/objections and contended that the Will was forged and fabricated document; that the signatures of the deceased Sh. Himanshu Kumar Roy on the Will were pleaded to be forged signatures; the Will was stated to be a collusive document and fabricated by the petitioner in collusion with the two attesting witnesses i.e Dr. Ms. Juthika Roy and Mr. R.S. Rathore; Dr. Ms. Juthika Roy is the ex-wife of respondent No. 2 and was therefore inimical with the respondent No. 2/objector; the other attesting witnesses Sh. R. S. Rathore was the paramour of Dr. Ms. Juthika Roy. It was also the case of the objector/respondent No. 2 that the deceased was not in a mentally fit condition because he was suffering from diarrhea and pneumonia for about four days before his death and which aspect is to be taken with the fact that the Will is dated 11.1.2007 and the deceased testator died on the next date i.e 12.1.2007 in the hospital. In sum and substance the respondent No. 2/objector contends that the Will is a forged and fabricated document, there are suspicious circumstances and deceased testator was not in a sound disposing mind for executing the subject Will dated 11.1.2007.

3. The probate court has held that the Will in question though is proved as per the case of the petitioner by examination of attesting witnesses, Dr. Ms. Juthika Roy and Mr. R.S. Rathore, however, the probate court has found that the Will is a forged and fabricated document because the signatures on the Will are not the signatures of the deceased testator. The probate court has also held that there are far too many suspicious circumstances with respect to the Will, and therefore, no probate can be granted of the Will, which has been held not to be a valid Will of the deceased testator Sh. Himanshu Kumar Roy.

4. Following are the some of the conclusions given by the probate court for dismissing the probate petition:-

(i) The deceased testator was not of sound disposing mind on 11.1.2007 when the Will is said to have been made. As per the death summary report Ex.RW3/4 as also the deposition of the doctor RW3 Sh. Anil Sharma it was clear that the deceased testator was suffering from fever, cough, chest pain and loose motions accompanied by weakness for the last four days prior to making of the Will. It was not possible for the deceased testator in such sick condition to have accompanied the petitioner and PW2/Dr. Ms. Juthika Roy (ex-wife of objector) to the house of PW3/Sh. R.S. Rathore for making of the Will.

(ii) The Will was found to be bearing the stamp and seal of a notary Advocate Sh. K.C. Jain and who as RW-2 deposed that the rubber stamp of his name and registration number found on the Will were neither his rubber stamps nor the other stamps showing attestation by himself as notary. This witness RW2 also stated that the Will

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